to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover:

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1 Headlight motoring news welcome to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover: case summaries costs JC & A Solicitors Ltd v Andeen Iqbal & Others [2017] cyclist Adrian Elson v Andrew Stilgoe [2017] expert evidence Wilson v Gerami & Others [2017] ex turpi causa McHugh v Okai-Koi & Another [2017] fraud Accident Exchange Ltd v Nathan John George Broom & Others [2017] Naveed Hamid v (1) Sheikh Khalid & (2) Co-Operative Insurance Society General Insurance Ltd [2017] hire Select Car Rentals (North West) Ltd v Esure Services Ltd [2017] MIB (1) Jamie Whyatt (2) Gary Rees (3) Arron Rees v (1) Anthony Powell (2) Motor Insurers Bureau [2017] summer 2017 unknown driver Bianca Cameron v (1) Naveed Hussain (2) Liverpool Victoria Insurance Co Ltd [2017]

2 JC & A Solicitors Ltd v Andeen Iqbal & Others [2017] JC & A Solicitors had represented claimants in 3 claims which came within the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents in its original form before its amendment in In each case, the defendants insurers had admitted liability and paid fixed costs of 400 plus VAT in accordance with stage 1 of the Protocol. Thereafter, the 3 claimants took no further steps to advance their claims under stage 2 and they became statute barred. The defendants insurers commenced proceedings for recovery of the stage 1 fixed costs from the claimants and their solicitors. It was held that neither the Protocol nor the CPR made any express provision for a right of repayment if a claimant took no steps to pursue a claim after the conclusion of stage 1. There were also powerful reasons for concluding that a claimant was not obliged to repay stage 1 costs in those circumstances. The Protocol was a clear, detailed and precise code into which the court should be slow to imply terms. Moreover, it was an express aim of the Protocol that a claimant s legal representative should receive payment for the work done during each stage at the end of that stage, rather than at the end of the claim, regardless of what happened later. Finally, the stage 1 costs payment could also not sensibly be regarded as an interim payment on account or as a conditional payment. For those reasons the solicitor s appeal was allowed. Adrian Elson v Andrew Stilgoe [2017] The district judge found that the Protocol conferred a right of recovery of the stage 1 fixed costs in circumstances where a claim was not pursued by a claimant because the whole system was based on the premise that there would be a claim made for personal injury. The solicitors appealed, submitting that the Protocol contained no such express provision for repayment of stage 1 costs and no such provision could be implied. The appellant, a cyclist, had been cycling along a single carriageway with a friend, and the respondent had been driving in the opposite direction. The appellant was overtaking a line of stationary traffic and as he manoeuvred around a puddle, he entered the respondent s side of the road and a collision occurred. At the liability only trial, the judge rejected evidence from the friend and an independent witness that they had been cycling in single file, and instead found that they were cycling next to each other. 1

3 He found there was no reason why the appellant should not have stopped before he went around the puddle. The respondent had been driving properly and at an appropriate speed. The appellant appealed the dismissal of his claim, arguing that the finding that (1) the cyclists were riding alongside each other was perverse and against the weight of the evidence and also that (2) the respondent had not breached his duty of care to see and avoid the appellant was wrong in law. It was held that the judge had considered the friend s evidence in some detail and criticised it with reasons. He concluded that the evidence was unreliable, and in contrast the respondent s evidence on the issue was straightforward and reliable. Moreover, the judge s conclusion on the issue was not determinative in his decision. He said even if I am wrong about that, and the appellant and his friend were not travelling side by side, I still cannot see any basis upon which the respondent can be liable. It was held that the judge s findings in relation to the respondent s driving were sustainable on the evidence and were sufficient to lead to a proper finding that the appellant was the sole cause of the accident. The appeal was dismissed. Wilson v Gerami & Others [2017] The claimant was badly injured in a road traffic accident when he was a backseat passenger in a car being driven by the first defendant which collided with the third defendant s car and then a tree. Liability was agreed, but contributory negligence was at issue because the claimant had not been wearing a seatbelt. The court had directed that the parties could instruct an expert in accident reconstruction and another in medical causation. The claimant instructed an expert in each field, but the defendants only in medical causation. The claimant applied to redact parts of the defendants expert report because he had strayed into the area of accident reconstruction which was not his expertise. The defendants submitted that the application should be adjourned and the matter dealt with at trial, which was due to start the following week and listed for 3 days. It was held that the right course was to adjourn the matter to the trial judge. The defendants had not had an opportunity to obtain any elucidation from the expert as to why he had said what he said. It would not be fair to strike out elements of the report without the defendants having an opportunity to find out more. Moreover, a good deal of what the claimant wanted to strike out was contained in statements that had been exchanged for at least 4 months before the application and the claimant s application should have been made sooner. It was also not clear that the boundaries between the two areas of expertise were precisely drawn and the application was adjourned. 2

4 McHugh v Okai-Koi & Another [2017] The defendant had parked her car in a car park of a public house. The claimant and his wife, the deceased, had been drinking in the pub and the couple were unhappy with where the defendant had parked. The defendant got into her vehicle and began to drive away, but stopped at the exit. The couple thought that she was attempting to block the exit and approached her again, pulling the handles of her car doors and asking for her to get out of the car. The deceased sat on the bonnet and the claimant moved to the rear of the vehicle. The court was satisfied that the claimant and the deceased had been very intoxicated, that the deceased had been the main antagonist and that the defendant had remained calm whilst suffering abuse from both. The defendant had stopped her car close to the exit in order to put on her seatbelt. The court accepted that the defendant had been in genuine fear and thought the couple were going to break into her car and attack her. However, her decision to drive off while the deceased was on the bonnet was a fatal misjudgement and she should have waited for the police to arrive. The fatality had two causes; the deceased s own actions and the defendant s decision to drive the car. In these exceptional circumstances, the deceased had been the highly culpable protagonist (to a degree of 75%), but the defendant should not have moved her car and so was 25% liable. Accident Exchange Ltd v Nathan John George Broom & Others [2017] The defendant rang the police for assistance, but drove away from the scene with the deceased still on the bonnet. The deceased was thrown from the vehicle and died of head injuries. The defendant was prosecuted for causing death by dangerous driving and, whilst acquitted, she was convicted of causing death by careless driving. The claimant s husband sought damages from the defendant, who submitted that she should not be held liable in tort given the exceptional circumstances and that, in any event, the deceased s actions were sufficiently gross as to allow her to rely on the defence on ex turpi causa. The claimant insurer applied to commit the defendants car hire rates surveyors to prison for contempt of court. The insurer, a specialist car hire and claims management group, whose main business was the credit hire of cars to victims of road traffic accidents, claimed that the defendants had engaged in conduct which interfered with the administration of justice. The defendants were employed by a company which provided forensic services, principally to motor insurers, when an issue arose in county court litigation regarding the daily rate of car hire that could be recovered by a claimant whose car had been damaged and who had hired a replacement on credit hire terms. 3

5 The insurer s case was that each of the defendants had produced or verified written surveys, reports and/or witness statements with details of alleged telephone enquiries which were false. The insurer submitted that, despite the fact that settlements had been negotiated with other insurers, settlement did not represent the full value of cases affected if dishonest evidence had not been deployed and that it had suffered a considerable loss as a result of the company s activities. It was held that there was overwhelming evidence that the company had been involved in systematic, endemic fabrication of evidence in which the defendants had knowingly and actively participated. Allegations against each defendant were considered and the court found that the cases listed in the schedule to the claim form represented only an indicative sample of the cases in which the defendants had committed contempt of court and/or had perjured themselves. The applications against each defendant were granted. Naveed Hamid v (1) Sheikh Khalid & (2) Co-Operative Insurance Society General Insurance Ltd [2017] After a 3 day trial, in which expert engineering and medical evidence was heard, the judge rejected the second defendant insurer s primary pleaded case of fraud. After investigating the incident, the insurer had refused to indemnify the first defendant. The judge also rejected the insurer s alternative contention that even in the absence of fraud, the claimant had not made out his case on the balance of probabilities. The judge found that the claimant and first defendant had given honest and truthful evidence and there was no reason to conclude that they had fraudulently conspired. The insurer appealed the finding, submitting that the judge had erred in her findings and in the adequacy of her reasons. It was held that an appellate court should not interfere with the trial judge s conclusions on primary facts, unless satisfied that the judge was plainly wrong. The decision had to be one that no reasonable judge could have reached. Notwithstanding that there was undeniable force in the insurer s points on inconsistencies in the evidence, and that might have persuaded a different judge to reach a different conclusion, that was not the relevant question. It could not be said that the judge had demonstrably failed to consider, or had misunderstood, the evidence on those points merely because she had not expressly referred to it in her judgment. The judge gave an immediate judgment, where all of the evidence was fresh in her mind, and it would be wrong to infer that she had failed to discharge her task properly merely because she did not refer to each and every alleged inconsistency. 4

6 Moreover, a detailed and apparently credible account of the general circumstances of the accident had been given by key witnesses, with nothing to suggest collusion, and the insurers did not have a positive case to advance that the accident was staged. It was held that the judge had dealt appropriately with the expert evidence and it could not reasonably be said that she had erred in finding that the claimant had proved his case on the balance of probabilities. The appeal was dismissed. Select Car Rentals (North West) Ltd v Esure Services Ltd [2017] 4 claimants had brought claims against a driver following a road traffic accident. One of the heads of claim was in the sum of 23, in respect of payments due under a credit hire agreement for replacement vehicles. The claims were dismissed at trial and the claimants were immune from the enforcement of any adverse costs order by the operation of Qualified One-Way Costs Shifting (QOCS). Consequently, the driver s insurers sought a non-party costs order against the car hire company on the basis that its involvement in the claims was sufficiently close to justify the making of such an order. The recorder concluded that the hire company was a person for whose financial benefit a claim had been made and that it was just to make a costs order against it, with the insurers being awarded 60% of their costs of defending the claim. The car hire company appealed the decision, arguing that the recorder had failed to resolve an issue concerning the relationship between CPR (the QOCS financial benefit exception provision) and the general discretion as to costs flowing from the operation of CPR It was held that CPR was entirely consistent with the way in which the proper approach to the discretion to order costs against a non-party had developed in recent case law. It followed that it was not necessary for the recorder to resolve the dispute between the parties as to the impact of CPR because it would have made no difference whatsoever to the outcome. The recorder had applied the right test when exercising his jurisdiction to award costs against the car hire company and, as such, the appeal was dismissed. (1) Jamie Whyatt (2) Gary Rees (3) Arron Rees v (1) Anthony Powell (2) Motor Insurers Bureau [2017] The appellants were passengers in a car driven by the first respondent, AP. They had been together at the house of a mutual friend prior to the accident. The appellants each brought a claim against AP in respect of their personal injuries, contending that he had been negligent. 5

7 Judgment was entered against AP, but as he was uninsured the MIB was joined as a defendant. The MIB argued that it was not liable, averring that AP had previous disqualifications for driving offences and the appellants had turned a blind eye as to whether he was insured. The judge concluded that he had not been given a full or truthful account of the evening in issue, or the underlying relationship of the people involved, determining that the appellants ought to have known that the vehicle was being driven without insurance. The appellants appealed the ruling, submitting that there was no material on which the judge could properly have made the finding he did. The question was whether, given the findings of fact, the judge had properly addressed the question of whether each appellant knew, or ought to have known, that the vehicle was uninsured when they got into it. He had been influenced by the belief or assumption that, prior to the accident, AP had been sentenced to imprisonment for driving offences. He inferred, from the circumstances and the fact that it was a small local community, that the appellants would have known more about AP than was admitted. The difficulty with that conclusion was, in part, there was no evidence before the judge establishing that AP had, in fact, been convicted and imprisoned for driving offences. The judge simply assumed that such evidence existed. The case law also established that a failure to make enquiries that a reasonable passenger might have made, without knowledge of the information relating to AP, would not be sufficient for the MIB to rely upon the exception to their obligation to compensate. The judge had failed to address that issue in his judgment. It was held that there had been a procedural shortcoming at trial, which meant that it would be unjust to allow the finding to stand on the evidence. The costs order was set aside and the matter was remitted to the county court for rehearing. Bianca Cameron v Naveed Hussain (1) Liverpool Victoria Insurance Co Ltd (2) [2017] A motorist was injured in a hit-and-run collision. The driver of the car at fault was never identified, but its registered keeper was. An insurance policy covered one named individual, but not the registered keeper, to drive the car. In January 2014, the motorist issued proceedings against the registered keeper, erroneously believing him to be the driver. Once it became clear that he was not, she added the insurer as a defendant, seeking a declaration under s. 151 of the Road Traffic Act [1988] that it was obliged to satisfy any unsatisfied judgment against the registered keeper. 6

8 The insurer denied liability, arguing that the policy did not cover the registered keeper and the driver had not been identified. The insurer sought summary judgment on its defence, which was granted by the district judge. That decision was upheld on appeal, holding that the motorist could submit a claim under the MIB s Untraced Drivers Agreement (UTDA). The motorist appealed the entry of summary judgment and the appeal court was required to consider whether s. 151 applied only where the driver could be named and whether the motorist was precluded from pursuing the unnamed driver because the UTDA gave her an adequate remedy. It was held that s. 151 did not only apply where the driver could be named. Where an insurance policy was in place and a notice of issue of third party proceedings had been served, the insurer had generally to meet liabilities of third party victims, whether or not the policy covered the driver, and irrespective of the driver s identity. That would be so unless the insurer could demonstrate that it was off cover or should never have been on cover. Moreover, a judgment for damages could be obtained against an unnamed driver. There was no reason why a claimant could not bring proceedings against an unnamed defendant who was suitably identified by an appropriate description. The motorist also had a substantive right to a judgment for damages against the driver and a statutory right to payment by the insurer if the judgment was not satisfied. The court held that it would be unjust to deprive the motorist of the remedy simply because she had an alternative remedy under the UTDA. The appeal was allowed. If there are any topics you would like us to examine, or if you would like to comment on anything in this bulletin, please the editor: Simon Evans at simone@dolmans.co.uk One Kingsway, Cardiff, CF10 3DS Tel : Fax : This update is for guidance only and should not be regarded as a substitute for taking legal advice Dolmans 7